How to be civil on rights for same-sex partners
Stephanie Dale of Stevens & Bolton looks at the workplace implications of the forthcoming Civil Partnership Act 2004, which will allow same-sex couples to register as civil partners giving them the same rights as married couples, including access to employment and pension benefits.
At present, gay and lesbian couples cannot have their relationships legally recognised in the UK. Partnership registration schemes, offered in some cities, provide a formal ceremony for same-sex couples, but confer no legal status on the couples involved. But this is set to change.
The Civil Partnership Act (CPA) comes into force on 5 December and will give same-sex couples the opportunity to register their relationships legally in a similar way to marriage. They will then have rights and responsibilities like married partners for the purposes of tax, immigration and nationality, inheritance, employment and pension benefits.
This has necessitated changes to some discrimination legislation to prevent discrimination for same-sex partners.
The proposed changes to the Employment Equality (Sexual Orientation) Regulations 2003 will make it clear that the status of a civil partner is comparable to a spouse. A civil partner treated less favourably than a married partner can bring a claim for discrimination on the grounds of sexual orientation.
It is also proposed that an employer will not be able to justify less favourable treatment of a civil partner as compared to a spouse in similar circumstances unless they can show that being heterosexual was a genuine occupational requirement.
The CPA has important implications for pensions. The key change for occupational schemes relates to those schemes which are contracted out. Essentially, if a member of a contracted-out scheme dies and leaves a civil partner, the partner will be entitled to a survivor's benefit relating to the member's contracted-out benefits accrued since April 1988. Other changes will be made to the contracting-out provisions so that same-sex couples are treated the same as married partners.
An amendment may be required for non-contracted out schemes if the scheme's rules limit survivors' benefits depending on marital status; the amendment would need to provide for a surviving civil partner to receive benefits for service after 5 December 2005.
Practical points
Employers may limit exposure to claims by auditing their policies and procedures to ensure that benefits extended to married partners, such as private health insurance, paid travel expenses for spouses and staff discounts, are also available to civil partners.
They must also be conscious of informal policies and customs in the workplace, such as the way employees are invited to social events. In addition, an informal practice of allowing an employee to take additional unpaid leave for a honeymoon or to make an informal company contribution to a wedding gift may foster a claim if the same benefits are not opened to registered civil partners. And there are more 'bear-traps'.
Under the new Act, employers must treat civil partnerships registered in foreign jurisdictions, which meet the criteria for UK civil partnerships, in the same way as they treat UK civil partners.
As with civil marriage, not all same-sex partners will be keen to rush down the aisle and sign the register. But this does not offer employers an excuse to bury their heads in the sand. Employers must take steps now if they are to limit their exposure in this area.
- Audit policies and amend where necessary to ensure that benefits extended to married spouses also apply to civil partners
- Revise informal policies and practices in the offices such as additional 'honeymoon' leave and invitations to social events
- Check the terms of benefits packages from third-party providers where cover is extended to a spouse
- Offer training to increase awareness of civil partnerships and/or the amendments to the Sexual Orientation Regulations
- Review the pension scheme rules and ensure that scheme administrators are ready to implement the changes
By Stephanie Dale, head of employment, Stevens & Bolton.
